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A Tulsa man who
fatally stabbed and slashed his wife and 2 children in her care is
the next man in line to be executed in Oklahoma. Tuan "Tommy Wing"
Nguyen, 38, was convicted and sentenced to death for the May 24,
1982, murders of 6-year-old Joseph White and 3-year- old Amanda Jo
White.

The children's
parents found them and Nguyen's 21-year-old wife, Donna, dead when
the parents returned to their home. Donna Nguyen had been caring for
the children, who were her relatives, while their parents were away.
Nguyen was sentenced to life imprisonment for his wife's murder.

Tuan Nguyen,
also known by his chosen Americanized name, "Tommy Wing," was
arrested in Arizona four years after his the victims were found
stabbed to death in Oklahoma. He was convicted and sentenced to
death in 1986.

Prosecutors say
that he stabbed his wife, Donna, 26 times; his 3-year-old niece,
Amanda, 22 times; and his 6-year-old nephew, Joseph, 17 times. Mr.
Nguyen was arrested in Arizona in 1986 after a fight with a 14-year-old
girl with whom he had been living.

Tuan Anh Nguyen, 39, 98-12-10 -
Oklahoma

In McAlester, a Vietnamese immigrant convicted of killing his
estranged wife and 2 young children was executed by injection on his
39th birthday early Thursday.

Tuan Anh Nguyen was convicted of fatally stabbing his 20-year-old
wife, Donna Nguyen, and her young relatives, 3-year-old Amanda White
and 6-year-old Joseph White, in 1982.

Nguyen received the death sentence for killing
the children. The Nguyens' infant son was found unharmed in his crib
at the Tulsa duplex where the others were killed.

Nguyen came to America as a teen-age Vietnamese refugee in 1975
during the fall of Saigon. Assistant federal public defender Scott
W. Braden contended that Nguyen's mental health had deteriorated so
much he could not understand the death penalty.

Corrections Department spokesman Jerry Massie said Nguyen did
not request any witnesses to view his execution or any minister
beside him in the death chamber.

Nguyen becomes the 3rd condemned inmate to be put to death in
Oklahoma this year, and the 12th overall since the state resumed
executions in 1990.

(sources: Associated Press and Rick Halperin)

Tuan Anh
Nguyen

Amnesty International

December 1, 1998

Amnesty International has
received further information on Tuan Anh Nguyen, the former child
refugee from Vietnam scheduled to be executed in Oklahoma on 10
December 1998, the 50th anniversary of the adoption of the Universal
Declaration of Human Rights.

In the seven years that Tuan Nguyen has been held in H-Unit of
Oklahoma State Penitentiary, his mental health is reported to have
deteriorated to the point that there is now serious doubt over
whether he understands his punishment. In recent years he is
reported to have had repeated psychotic-like episodes in his cell
where he would scream for extended periods.

International standards prohibit the use of the death penalty
against "persons who have become insane" (Safeguard 6, UN Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death
Penalty, adopted 1984), and recommend that it not be used against
people of "extremely limited mental competence, whether at the stage
of sentence or execution" (UN Economic and Social Council,
resolution 1989/64, adopted 24 May 1989).

Whereas Tuan Nguyen used to show active interest in his own case, he
has been unable to assist his lawyers in any meaningful way for
several years. For many years he has refused to leave his cell for
anything apart from to shower. The last time he agreed to leave his
cell to meet with his lawyer was for a 10-minute meeting in early
1994, during which he said nothing for the majority of the time.
During the meeting Tuan Nguyen's mouth constantly worked in a back
and forward motion.

On a recent visit on 20 August 1998, his attorney spoke to Tuan
Nguyen through the "bean hole" (the hole through which the food tray
is passed) in the bottom of the cell door. His answers to the
lawyer's questions were restricted to "yes" or "no" or silence,
would take an unusually long time to emerge, and his lips and mouth
moved in an "odd repetitive pattern".

On 30 September 1998, a psychiatrist hired by the defence team went
to H-Unit to see Tuan Nguyen, but again the prisoner refused to
leave his cell. The psychiatrist observed Tuan Nguyen through the
bean hole. Very little communication was possible. Tuan Nguyen
paused for long periods with an involuntary mouth movement and
throat contractions which caused him to choke and cough. The
psychiatrist believes that Tuan Nguyen could be suffering from
degenerative neurological disease with cognitive impairment. He
noted that a conclusive finding was not possible without proper
neurological testing in a hospital setting.

Tuan Nguyen's execution date was set on 8 October. At the request of
his lawyers, prison officials took a mobile telephone to Tuan
Nguyen's cell door. Because he was incapable of dialling the number,
an official did so for him and placed the telephone in his hands.
Tuan Nguyen gave no response to the news of his impending execution.

On 23 October, Tuan Nguyen's lawyer
wrote to the prison warden indicating that there was "good reason to
believe" that Tuan Nguyen was insane as defined by Oklahoma law (that
is, he does not understand the nature of his punishment). Two weeks
later, the warden responded that Tuan Nguyen was not insane. It is
not known what other person or persons the warden relied upon to
make this determination of sanity. Tuan Nguyen's lawyers were not
present to cross-examine any such person, and they are appealing
that a proper hearing be conducted into their client's mental health.

Petitioner Tuan Anh Nguyen
was convicted in Tulsa County, Oklahoma, of three counts of first
degree murder and was sentenced to death on two of the counts and to
life imprisonment on the remaining count. After exhausting his state
court remedies, petitioner filed this § 2254 habeas petition
challenging his convictions and sentences. The district court denied
relief and Nguyen appeals. We affirm.

I.

Nguyen was born and raised
in Vietnam. In 1975, at the age of 15, he and other members of his
family left Saigon and eventually made their way by boat to a
refugee camp in Indian Town Gap, Pennsylvania. A church in Columbus,
Indiana, sponsored the family and assisted them in relocating to a
house in Columbus.

Nguyen dated Donna Barthlow,
a fellow high school student in Columbus. During the summer of 1978
they eloped to Washington state. A short time later they moved to
Bartlesville, Oklahoma, where they lived with Nguyen's uncle and
attended school.

The couple eventually
dropped out of school, returned to Columbus for a brief period, and
then moved to Tulsa, Oklahoma. While in Tulsa, the couple had a son,
Nathaniel. During this time period, the couple argued and Nguyen
began to exhibit jealous behavior.

Due to limited finances,
beginning in March 1982, the family shared a house with Donna's
cousin Myra White, Myra's husband Joseph, and the Whites' two young
children, Joseph (age 6) and Amanda (age 3). In mid-May 1982, Donna
asked Nguyen to move out of the house because she wanted a divorce.
He agreed and stayed with a friend, Tony Aguillar, who lived close
to the Whites' house.

At approximately 10:50 p.m.
on the evening of May 23, 1982, Myra White left her house for work
at a nearby gas station. After cleaning up around the house, Joseph
White also left the house and joined his wife at work shortly before
midnight.

At the time Joseph White
left the house, his two children were asleep in their upstairs
bedroom, and Donna and Nathaniel were downstairs in the living room.
The Whites worked through the night and returned home between 7:00
and 8:00 the following morning.

Upon arrival at their home,
the Whites discovered the front door was unlocked. Inside, they
found Donna stabbed to death in the living room; Nathaniel was
crying but unharmed in a playpen near Donna's body. Joseph White
went upstairs and discovered the bodies of his two children on the
floor of their bedroom. Both had been stabbed to death. A bent and
bloody kitchen knife was found downstairs near Donna's body.

At approximately 1:00 a.m.
on May 24, 1982, Nguyen was seen at a convenience store two miles
from the murder scene. Between 1:30 and 2:00 a.m., he visited Rick
Brown, an acquaintance who lived in an apartment one-half mile from
the murder scene.

Nguyen was holding a shirt
in his hands when Brown answered the door to his apartment, and
Nguyen asked to use the bathroom. He stayed in the bathroom, with
the water running, for several minutes. When he came out of the
bathroom, Nguyen asked Brown for a ride and a dry shirt. Brown gave
him a dry shirt and Nguyen left the apartment on foot, leaving
behind his wet shirt.

Between 5:00 and 5:30 that
same morning, Tony Nguyen and Tien Bach drove Nguyen to a Howard
Johnson's restaurant on Highway 44, where they dropped him off and
gave him $15. Two days later, on May 26, 1982, Bach received a
collect call from Nguyen. Bach asked Nguyen if he had killed his
wife and Nguyen admitted that he had. Nguyen was charged with three
counts of first degree murder in June 1982.

Nguyen was eventually
arrested in Tucson, Arizona, in 1986 following a domestic
disturbance between Nguyen and Mychau Truong, a teenage girl with
whom he was living. Nguyen had met Truong at a wedding in Milwaukee,
Wisconsin, in the summer of 1984. The two moved to Louisiana, where
Nguyen regularly beat Truong and kept her a virtual prisoner in
their trailer home.

They eventually moved to
Arizona, where Nguyen continued to beat her. During one of the
beatings, while Truong was pregnant with Nguyen's child, Truong shot
Nguyen. Nguyen was arrested after this incident and transported to
Tulsa on June 30, 1986, to stand trial on the pending murder charges.

A jury convicted Nguyen of
three counts of first degree murder. At the conclusion of the
sentencing phase of trial, the jury found the existence of three
aggravating factors: (1) the murder of the White children was
especially heinous, atrocious, or cruel; (2) Nguyen's actions
presented a great risk of death to more than one person; and (3)
there was a probability that Nguyen constituted a continuing threat
to society.

Based upon these findings,
the jury recommended sentences of death for the murders of the
children and a sentence of life imprisonment for the murder of Donna
Nguyen. The district court adopted the jury's recommendations and
sentenced Nguyen to life imprisonment for the murder of his wife,
and death by lethal injection for the murders of the children.

Petitioner filed a direct
appeal from his convictions and sentences with the Oklahoma Court of
Criminal Appeals. The court found the evidence had been insufficient
to support the "heinous, atrocious, or cruel" aggravating factor;
however, the remaining aggravating and mitigating circumstances were
reweighed and the sentences of death were affirmed. Nguyen v.
State, 769 P.2d 167 (Okla. Crim. App. 1988), cert. denied
492 U.S. 925 (1989).

Nguyen filed an application
for post-conviction relief in state district court. An evidentiary
hearing was conducted and relief was denied. The denial of relief
was affirmed in Nguyen v. State, 844 P.2d 176 (Okla. Crim.
App. 1992), cert. denied 509 U.S. 908 (1993). On May 4, 1994,
the Oklahoma Court of Criminal Appeals ordered a July 19, 1994,
execution date. Nguyen filed a second application for post-conviction
relief in state district court and that application was denied. The
denial of relief was affirmed in Nguyen v. State, 879 P.2d
148 (Okla. Crim. App. 1994), and Nguyen's request for stay of
execution was denied.

Nguyen filed this § 2254
action and an accompanying application for stay of execution on July
15, 1994. The district court stayed execution that same day.
Ultimately, the court entered judgment denying relief on October 28,
1996. Nguyen filed a notice of appeal on November 20, 1996. He also
filed an application for a certificate of appealability, which was
granted by the district court on November 26, 1996.

II.

Before addressing the issues
raised by Nguyen on appeal, we address whether the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) applies to this case.
The AEDPA amended chapter 153 of title 28 of the United
States Code governing all habeas proceedings in federal courts, and
created a new chapter 154 governing state habeas proceedings filed
by prisoners subject to capital sentences. See 110 Stat.
1217-26.

Although the new provisions
of chapter 154 are expressly applicable "to cases pending on or
after [April 24, 1996], the date of enactment of [the AEDPA]," 110
Stat. 1226, a state can take advantage ofthem only if it
satisfies the requirements of 28 U.S.C. § 2261(b) and (c).

As for the amendments to
chapter 153 (which do not contain an effective date), the Supreme
Court recently held they are generally not applicable to cases filed
before AEDPA's effective date. SeeLindh v. Murphy,
117 S. Ct. 2059, 2068 (1997), overruling the holding of
Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996), cert. denied
117 S. Ct. 746 (1997), that § 2253(c) applied to cases pending when
AEDPA was enacted, even though the habeas petition was filed before
AEDPA's effective date.

Because the State of
Oklahoma has not yet satisfied, or even argued it can satisfy, the
requirements of § 2261(b) and (c), the expedited habeas procedures
set forth in chapter 154 are inapplicable to this case. SeeGreen v. Johnson, 116 F. 3d 1115, 1120 (5th Cir. 1997) (reaching
similar conclusion with respect to habeas action filed by Texas
state prisoner facing capital sentence). Further, because the habeas
petition in this case was filed prior to AEDPA's effectivedate, the amendments to chapter 153 (including the requirement
that a habeas petitioner obtain a certificate of appealability) are
inapplicable as well.(1)SeeLindh, 117 S. Ct. at 2068.

Under pre-AEDPA standards, a
state habeas petitioner cannot appeal adistrict court's
ruling on a habeas petition unless a district or circuit judge
issues a certificate of probable cause. 28 U.S.C. § 2253. To obtain
a certificate of probable cause, a petitioner must make a "substantial
showing of a denial of [a] federal right," Barefoot v. Estelle,
463 U.S. 880, 893 (1983), precisely the same showing a petitioner
must make under AEDPA standards to obtain a certificate of
appealability. SeeLennox, 87 F.3d at 434. Because the
district court granted Nguyen a certificate of appealability, he has
satisfied the standards for a certificate of probable cause as well
and is entitled to appeal the district court's denial of his habeas
petition.

III.

Competency to stand trial

Nguyen contends he was not
mentally competent to stand trial, arguing the facts of the crime
itself, combined with his personal history as a Vietnamese refugee
and his jealous and possessive behavior with both his wife and his
subsequent girlfriend, suggest he suffers from a mental disorder.

In addition, he points to
affidavits from various mental health experts who opine that he may
suffer from post-traumatic stress disorder (PTSD), bipolar disorder,
or some other mental disorder that could have prevented him from
forming the specific intent necessary for first degree murder and/or
from being able to fully appreciate the nature of the charges
against him and assisting his lawyer in preparation of his defense.

Finally, Nguyen suggests the
mental disorder has worsened, as demonstrated by his post-conviction
behavior in prison (he has allegedly not talked to anyone, including
his attorneys and family, since a 1989 episode in which he
barricaded himself in his prison cell).

Nguyen first raised this
issue in his initial application for post-conviction relief in state
court. The Oklahoma Court of Criminal Appeals concluded the issue
was waived because it was not raised on direct appeal. Nguyen,
844 P.2d at 178 ("Issues which were not raised on direct appeal, but
could have been raised are waived.").

Generally, federal habeas
review of procedurally barred issues is foreclosed "unless the
prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991).

However, this general rule
does not apply to substantive mental competency claims. Medina v.
Singletary, 59 F.3d 1095, 1106-07 (11th Cir. 1995); seeSena v. New Mexico State Prison, 109 F.3d 652, 654 (10th Cir.
1997). Accordingly, we proceed to analyze the merits of the
competency claim, rather than undertaking an analysis of cause and
prejudice.(2)

Competence to stand trial
requires that a defendant have "sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding" and "a rational as well as factual understanding of
the proceedings against him." Dusky v. United States, 362
U.S. 402, 402 (1960).

After carefully reviewing
the record in this case, we find no merit to Nguyen's competency
argument. Although the crime itself was horrific and irrational,
that alone cannot be equated with mental incompetence to stand trial.
SeeMedina, 59 F.3d at 1107 ("neither low intelligence,
mental deficiency, nor bizarre, volatile, and irrational behavior
can be equated with mental incompetence to stand trial.").

Nguyen had no prior history
of mental illness or disorder (e.g., previous consultations or
treatment with mental health professionals, previous
hospitalizations, etc.), nor did he display any irrational or
unusual behavior during the pretrial proceedings or trial. In fact,
at a hearing conducted by the trial court approximately six months
after trial, he spoke on the record and explained, in detail, why he
wanted a new attorney appointed to represent him. See
Transcript of 4/10/87 Proceedings, at 3-5 (differences of opinion
with trial counsel concerning trial strategy).

That testimony strongly
suggests Nguyen was lucid at the time of trial, understood the
charges against him, and participated in his own defense. The other
factors to which Nguyen now points (e.g., abusive behavior toward
wife and girlfriend, post-conviction behavior in prison) simply do
not constitute clear and convincing evidence creating a real,
substantial, and legitimate doubt as to his competence to stand
trial. SeeMedina, 59 F.3d at 1106. We therefore
reject his substantive competency argument and conclude the district
court did not err in refusing to conduct a hearing on the issue.

Ineffective
assistance of counsel at trial

Nguyen contends his trial
counsel was ineffective in (1) failing adequately to investigate
issues relevant to the sentencing phase of trial (i.e., his
background and his mental competency) and failing to present a valid
mitigation defense during the sentencing phase; (2) failing to
conduct adequate voir dire and object to the prosecutor's appeal to
community outrage during voir dire; (3) failing to make opening
statements in either phase of the trial; and (4) failing to object
to inadmissible testimony from witnesses and to improper comments
made by the prosecutor during closing argument in the guilt phase.

In addition, Nguyen asserts
his primary defense counsel was a veteran of the Vietnam war and was
suffering from PTSD as a result of the war, and thus had an inherent
conflict of interest in representing Nguyen.

Evaluating the effectiveness
of counsel's assistance requires a two-part inquiry. To prevail,
Nguyen must prove counsel's performance fell below an objective
standard of reasonableness, and there is a reasonable probability
that, but for counsel's errors, the outcome of the proceedings would
have been different. Kimmelman v. Morrison, 477 U.S. 365, 375
(1986); Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir.
1997). A claim of ineffective counsel is a mixed question of fact
and law, which we review de novo.(3)Williamson, 110 F.3d at 1513.

Failure to investigate background
and present

mitigation
evidence at sentencing phase

During the sentencing phase
of the trial, the prosecution introduced photographs of the crime
scene and presented the testimony of Mychau Truong. Truong testified
that, after she began living with Nguyen and moved with him to
Louisiana, he began hitting her on a regular basis. She further
testified that he told her to stay inside their trailer and not to
look out the windows. Nguyen continued to hit Truong on an almost
daily basis after they moved to Arizona, even after she became
pregnant. Ultimately, Truong shot Nguyen during one of the beating
episodes. Although counsel cross-examined Truong, the defense team
did not present any type of mitigating evidence of its own.(4)

During closing arguments in
the penalty phase, defense counsel essentially asked the jury to
exercise mercy and sentence Nguyen to life in prison rather than
death by lethal injection. As indicated by the verdicts, the jury
rejected this argument.

In his habeas petition,
Nguyen contends his trial counsel failed to investigate mitigating
evidence that could and should have been presented during the
sentencing phase of the trial.

In particular, he contends
information concerning his "war-torn childhood, his danger, hunger
and sickness filled months as a refugee, and the traumatic days of
adjustment to a totally foreign culture in the United States" would
have served as "powerful" mitigating evidence. Opening Brief, at 25.
In addition, he contends that various of his family members would
have been willing to testify on his behalf during the sentencing
phase.

"Because [the adversarial]
testing process generally will not function properly unless defense
counsel has done some investigation into the prosecution's case and
into various defense strategies, [the Supreme Court has] noted that
'counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.'"
Kimmelman, 477 U.S. at 384 (quoting Strickland v.
Washington, 466 U.S. 668, 691 (1984)). We have emphasized that
counsel's duty to investigate all reasonable lines of defense is
strictly observed in capital cases. Williamson, 110 F.3d at
1514.

This issue was first raised
by Nguyen in his first state post-conviction proceeding. The trial
court conducted an evidentiary hearing on this issue and two of the
three attorneys who represented Nguyen testified about their
pretrial investigation and strategy for the sentencing phase. Pete
Silva, the primary defense attorney, testified that "all of the[ir]
investigation was geared toward not only presenting a defense to the
instant charges, but to develop any information that we might be
able to present to a jury in mitigation of the second stage."
Transcript of 4/19/90 Hearing, at 47.

However, Silva's testimony
suggests the defense team's primary source of information was the
prosecution, who agreed to an "open-file" policy. Further, Silva
acknowledged no attempts were made to contact anyone in Indiana (where
Nguyen initially lived after coming to the United States), nor were
any attempts made to obtain his medical records, immigration/naturalization
records, or school records. Silva did exhibit a fairly detailed
knowledge of Nguyen's background.

According to Silva, this
information came from Nguyen, Nguyen's sister (whom he alleges he
talked with at least twice), and a review of police reports. Silva
acknowledged he did not contact any family members other than
Nguyen's sister, but instead simply asked her to have other family
members contact him if they wanted to do so. His contacts with the
sister were initiated by the sister rather than by Silva.

Johnnie O'Neal, who assisted
Silva in the defense, testified he talked to Nguyen's sister and "an
older lady" concerning the sentencing phase of trial on two or three
occasions. O'Neal was unable to produce any notes from those
conversations.

He concluded at the time of
trial that he could not come up with any viable mitigation theory.
It was his recollection that they "could only find one person, the
young lady that I've spoken of [Nguyen's sister], who was willing to
testify for him in the second stage." Id. at 132.

O'Neal further indicated
there were other people who were either unwilling to testify or
whose testimony would have been "as adverse as it would have been
positive." Id. However, O'Neal was unable to name any of
those people, and he acknowledged some of them had positive things
to say about Nguyen.

O'Neal stated that Nguyen
did not want his family to testify. Finally, O'Neal testified he "had
made the decision that faced with the aggravating circumstances we
had, one sole mitigation witness [i.e., Nguyen's sister] would have
been ineffective to the jury and that the appellate record would
look better and be in a better posture if we had no mitigation
witnesses and were relying on a technical argument, if you will,
based upon Betsy Payne's testimony." Id. at 140.

The lead prosecutor, Thomas
Gillert, testified that his office contacted various people in
Indiana to obtain background information on petitioner. He testified
that he also talked to Nguyen's family members in Bartlesville,
particularly his uncle. According to Gillert, the uncle "didn't have
anything to say . . . that was in the least bit complimentary about
the defendant, [and] did not want to testify and did not want anyone
[else in the family] to testify [either]." Id. at 154.
Gillert thought he had informed Silva about the results of his
conversation with Nguyen's uncle.

The testimony of Silva,
O'Neill, and Gillert is bolstered somewhat by excerpts from the
trial transcript. Just prior to the sentencing phase, the following
colloquy took place among O'Neill, Gillert, and the trial court:

THE COURT: So that what you
are telling me, then, I take it, Counselor, is that you have no
mitigating circumstances you want to offer outside of this one
particular mitigating circumstance that I have refused concerning
the Pardon and Parole Board [i.e., Ms. Payne] which I consider
legislation.

MR. O'NEAL: That's correct,
Judge. And the record should not reflect the Court is prohibiting us
from offering any other mitigating circumstances, but we have made
the choice to proceed or --

THE COURT: Very well.

MR. O'NEAL: -- had it made
for us to proceed in this fashion.

* * *

MR. GILLERT: If I might also,
for the purpose of the record in chambers, because these cases,
assuming this goes on for a long time, I say this to some extent, if
you will, for protection of defense counsel. There are members of
this individual's family that live in Oklahoma, Bartlesville. And I
can tell the Court that I have visited with them and I think counsel
for the defense has stated it properly. There just simply is no one
who will come forward to say, at least by way of thinking people we
have talked to, to say anything good about him. And I just want to
put that in the record because these things go a long time and
somebody is going to be wondering what is going on here and that is
what the deal was. There was no member of his family -- there are
uncles and aunts and brothers and sisters and so on and none of them
in our interview with them had anything that I thought would be of
any help to anybody in mitigation. And I just thought for the record
I would put that in.

Trial Transcript, at 812-14.

Nguyen has submitted
affidavits from various family members controverting some of the
testimony of Silva, O'Neill, and Gillert. In particular, his sister
alleges Silva never asked her to provide any background information
about their family; she further alleges she would have been willing
to testify on her brother's behalf. Nguyen's uncle alleges he never
told Gillert he was unwilling to testify.

To the contrary, he alleges
that he and other family members would have been willing to testify
and could have been easily contacted by the defense team. Nguyen's
aunt likewise alleges that, although she and other family members
would have testified, they were not contacted by Silva (or other
defense team members) prior to trial. Finally, a woman named Janet
Sharp, who had sponsored the Nguyen family when they came to the
United States from Vietnam, provided an affidavit outlining Nguyen's
background while living in Indiana.

Ultimately, we find it
unnecessary to determine whether Silva and O'Neill were ineffective
for failing to investigate potential mitigation evidence or for
failing to present such evidence at the sentencing phase of trial
because we agree with the district court that, even if all the above-described
testimony concerning Nguyen's background had been introduced during
the sentencing phase, it would have been insufficient to offset or
in any manner to explain or justify the murders of the White
children (for which Nguyen was sentenced to death). Accordingly, we
conclude Nguyen was not prejudiced by his trial counsel's alleged
failure to investigate and present mitigating evidence.

Failure to investigate mental
competency

For the reasons outlined
above, we conclude Nguyen's trial counsel was not ineffective for
failing to investigate his mental competency.

Failure to conduct adequate voir
dire

Nguyen contends he was
deprived of his right to an impartial jury because his trial counsel
failed to question potential jurors regarding their attitudes
concerning the Vietnam war, Nguyen's race, and domestic abuse.

He further contends his
trial counsel failed to remove two jurors who were personally
touched by violent crimes, and failed to object to the prosecutor's
appeal to community outrage during jury selection. He also contends
defense counsel questioned potential jurors in a way that caused
them to ignore relevant sympathy arising from the evidence at the
second stage of trial.

An attorney's actions during
voir dire are considered to be matters of trial strategy. Teague
v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). A strategic
decision cannot be the basis for a claim of ineffective assistance
unless counsel's decision is shown to be so ill chosen that it
permeates the entire trial with obvious unfairness. Id.

Silva testified at the post-conviction
hearing that he intentionally decided not to question potential
jurors about the Vietnam war or Nguyen's race because he felt those
areas could "taint the entire panel." Transcript of 4/19/90 Hearing,
at 56. Accordingly, Silva testified that he elected to focus on
whether potential jurors could give Nguyen a fair trial. We agree
with the district court's conclusion that this tactic was neither
unreasonable nor prejudicial to Nguyen. SeeMoore v.
Butler, 819 F.2d 517, 520 (5th Cir. 1987) (rejecting similar
argument that defense counsel was negligent in failing to question
potential jurors about racial prejudice).

As for trial counsel's
alleged failure to disqualify two potential jurors who had personal
experiences with crime, we have reviewed the transcript of the
questioning of those jurors and conclude neither demonstrated a
prejudice toward the prosecution or against Nguyen as a result of
their experiences. SeeUnited States v. Tegzes, 715
F.2d 505, 507 (11th Cir. 1983) (bias or prejudice toward crime does
not disqualify person to sit as juror in criminal case as long as
feelings do not lead to predisposition toward prosecution or accused).

Finally, we conclude Nguyen
was not prejudiced by defense counsel's statements to potential
jurors that sympathy was not to play a part in the case. Accordingly,
we reject Nguyen's argument that he was deprived of his Sixth
Amendment right to an impartial jury.

Failure to make opening statement
and to object to

inadmissible evidence and improper remarks from prosecutor

Nguyen contends his trial
counsel was ineffective during trial for several reasons. First, he
complains counsel did not make an opening statement in either phase
of the trial. Second, he alleges counsel failed to object to
inadmissible statements from a number of witnesses (e.g., testimony
of Joseph White concerning a hearsay statement allegedly made by his
wife when they entered their house; speculative testimony from
forensic chemist Rebecca Rush that blood had been washed out of
Nguyen's shirt). Third, he alleges counsel failed to object to
improper remarks made by the prosecutor during closing argument in
the guilt phase.(5)

We conclude no prejudice
resulted from any of these alleged errors. Defense counsel's failure
to make an opening statement was nothing more than a tactical
decision that did not adversely affect Nguyen. SeeUnited
States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (failure to
present opening statement itself is not ineffective assistance of
counsel); United States v. Miller, 907 F.2d 994, 1000 (10th
Cir. 1990) (strategic decision to eschew opening statement, without
more, does not constitute ineffective assistance of counsel).

Even assuming the challenged
testimony was inadmissible, counsel's failure to object to such
testimony did not deprive Nguyen of a fair trial. As noted by the
district court, the evidence of guilt was substantial, if not
overwhelming. Thus, the testimony of White and Rush was too
insignificant to have altered the outcome of the trial. Finally,
none of the prosecutor's remarks during closing argument were so
egregious that they deprived Nguyen of a fair trial.

Inherent conflict due to defense
counsel's likely PTSD

Nguyen alleges Silva was
likely suffering from PTSD due to his experiences in the Vietnam war
and thus had an inherent conflict of interest in representing
Nguyen, a person of Vietnamese descent. Although it is conceivable
that a Vietnam veteran could have internal conflicts about
representing a Vietnamese client, there is simply no reliable
evidence in the record to substantiate the claim.

At best, Nguyen has
presented the affidavits of two mental health professionals who
opine it is possible that Silva suffers from PTSD as a result of his
experiences in Vietnam and that such PTSD could have affected his
ability to represent Nguyen. We conclude this evidence is wholly
insufficient to raise a colorable claim.

Ineffective
assistance of appellate counsel

Nguyen contends he was
denied effective assistance of appellate counsel on direct appeal
because his appointed counsel failed to adequately research and
brief the issues raised on direct appeal (the appellate brief was
only twenty-one pages in length), failed to raise the issue of
ineffective assistance of trial counsel, and failed to raise other
critical issues on appeal (i.e., constitutionality of the "continuing
threat" aggravator, and whether the flight instruction deprived
Nguyen of the right to the presumption of innocence).(6)

The district court addressed
and rejected these arguments. Our scope of review is de novo.
Williamson, 110 F.3d at 1513. Nguyen must show (as with his
claims of ineffective assistance of trial counsel) both that
appellate counsel's performance was deficient and that the deficient
performance was prejudicial. Id.

We find no merit to the
argument as to the length and adequacy of the brief filed by
appellate counsel. Contrary to Nguyen's arguments, there is no
correlation between the length of a brief and its quality. Although
the appellate brief was relatively short, it was nevertheless
effective (at least in part). As noted by both the Oklahoma Court of
Criminal Appeals and the district court, appellate counsel was
successful in challenging the "heinous, atrocious and cruel"
aggravator. Accordingly, there is no basis for concluding appellate
counsel's performance in preparing the brief was deficient, or that
counsel's performance in this regard was prejudicial.

As for Nguyen's second and
third arguments, the issues he claims should have been raised on
direct appeal are addressed and rejected in other portions of this
opinion. Thus, we conclude appellate counsel was not ineffective for
failing to raise these issues on direct appeal.

Improper use of
peremptory challenges

During voir dire, the
prosecution exercised three peremptory challenges to excuse three
African-American members (two men and one woman) from the jury
panel. Defense counsel moved for a mistrial, arguing the prosecution
violated Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding
prosecutor from challenging potential jurors solely on account of
their race or on the assumption that members of that race as a group
will be unable to impartially consider the State's case).

The trial court rejected
defense counsel's argument on the ground that Nguyen was not African-American
and thus had no ground for objecting to removal of the three panel
members. Out of an abundance of caution, the court asked the
prosecution to state on the record its reasons for challenging the
three panel members.

The prosecution indicated it
was challenging two of the prospective jurors based on their actions
and responses while venirepersons. As for the third prospective
juror, the prosecution alleged it had information indicating such
person had been wrongfully charged with a crime in a "horrible
snafoo." Nguyen raised the issue in his direct appeal and the
Oklahoma Court of Criminal Appeals agreed with the trial court that
Batson was inapplicable since Nguyen was not African-American.
Nguyen, 769 P.2d at 170.

In addition, the court
concluded the prosecution had come forward with race-neutral
explanations for each of the three challenges. Id. During the
hearing on his first post-conviction application, Nguyen attempted
to again explore this issue by questioning the prosecutor about the
decision to strike the three African-American venirepersons. The
court refused to allow testimony on the issue on the ground that
Nguyen was not African-American.

Nearly two years after
Nguyen's conviction, the Supreme Court issued its opinion in
Powers v. Ohio, 499 U.S. 400 (1991), holding a Batson-based
equal protection claim can be asserted even when there is no racial
identity between the defendant and the venirepersons allegedly
discriminated against by the prosecutor's use of peremptory
challenges. Relying on Powers, Nguyen renews his assertion in
this habeas action that the prosecutor's striking of the three
African-American jurors was improper.

Because Powers
constitutes a new constitutional rule of criminal procedure, the
Teague doctrine prevents it from being applied to disturb a
habeas petitioner's conviction that became final prior to
announcement of the new rule. SeeVan Daalwyk v. United
States, 21 F.3d 179, 180 (7th Cir. 1994) (federal habeas
petitioner, whose conviction was final prior to Powers, could
not rely on Powers to challenge conviction); Farrell v.
Davis, 3 F.3d 370, 372 (11th Cir. 1993) (state prisoner);
Echlin v. LeCureux, 995 F.2d 1344, 1351 (6th Cir. 1993);
Holland v. McGinnis, 963 F.2d 1044, 1053 (7th Cir. 1992).
Nguyen's convictions became final nearly two years prior to the
issuance of Powers. Thus, he has no basis for challenging the
prosecutor's decision to strike the three African-American
venirepersons.

Refusal to permit
mitigating evidence during sentencing phase

Nguyen contends the trial
court violated his constitutional rights by refusing to allow him to
present mitigating evidence during the sentencing phase of the trial.
More specifically, he contends the court refused to allow him to
present testimony of witness Betsy Payne regarding the amount of
time he would likely spend in prison if given three consecutive life
sentences.

According to Nguyen, this
testimony would have diminished the prosecution's argument that he
posed a continuing threat to society, which was one of the
aggravating factors ultimately found by the jury. Nguyen also
contends the court erred in refusing to instruct the jury on his
parole situation if given three consecutive life sentences.

In support of his arguments,
Nguyen relies on Simmons v. South Carolina, 512 U.S. 154
(1994), in which the Court held a capital defendant must be
permitted to inform his sentencing jury that he is parole-ineligible
if the prosecution argues he presents a future danger. The district
court concluded Simmons was inapplicable since Nguyen would
be eligible for parole under the Oklahoma sentencing scheme in
existence at the time of his trial if he were sentenced to three
consecutive life sentences.

Although it is arguable that
Simmons can be interpreted to allow a parole-eligible
defendant to present evidence of the likelihood of parole if the
prosecution argues he presents a future danger, it is unnecessary to
decide the issue.

While Nguyen's appeal was
pending, the Supreme Court held Simmons is a new rule that,
under the Teague doctrine, cannot be used to disturb a habeas
petitioner's death sentence that became final prior to Simmons.
O'Dell v. Netherland, 117 S.Ct. 1969, 1971 (1997). Because
Nguyen's death sentences became final well prior to the issuance of
Simmons, his sentences cannot be reversed on this ground.

"Continuing threat"
aggravating circumstance

Under Oklahoma's statutory sentencing scheme, a
separate sentencing proceeding is conducted in all cases in which a
defendant is convicted of first degree murder. Okla. Stat. Ann. tit.
21, § 701.10. The purpose of the proceeding is twofold: to determine
whether the defendant is eligible to receive the death penalty and,
if so, whether he or she should in fact receive the death penalty.
Id.

During the
proceeding, "evidence may be presented as to any mitigating
circumstances or as to any of the aggravating circumstances"
specifically outlined in the Oklahoma sentencing statutes. Id.
The death penalty may not be imposed unless the jury unanimously
finds at least one of the statutory aggravating circumstances beyond
a reasonable doubt, and finds beyond a reasonable doubt that the
aggravating circumstances outweigh any mitigating circumstances.
Id. at § 701.11.

Here, the prosecution filed
a bill of particulars prior to trial alleging the presence of three
aggravating factors: that Nguyen knowingly created a great risk of
death to more than one person; that the murders were especially
heinous, atrocious, or cruel; and that he constituted a continuing
threat to society.

At the sentencing phase of
trial, the jury was informed of this bill of particulars and was
asked to determine whether, in fact, any or all of the alleged
aggravating factors existed. In pertinent part, the jury was
instructed to determine whether "[t]here exists the probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society." State District Court
Record, at 123 (Suppl. Instr. 4). The jury found the existence of
the three aggravating factors and that the aggravating factors
outweighed any mitigating factors.

In his habeas petition,
Nguyen contends the "continuing threat" factor utilized by the
prosecution was unconstitutionally vague. In support of this
contention, he argues the supplemental instructions provided to the
jury at the conclusion of the sentencing phase did not provide the
jury with sufficient guidance for determining whether, in fact, this
aggravating factor existed.

Although Nguyen did not
raise this issue on direct appeal, he contends he can satisfy the
cause and prejudice standards, and thus avoid procedural default,
because his appellate counsel was ineffective for failing to raise
the issue. For the reasons outlined below, we conclude Nguyen can
demonstrate neither cause nor prejudice.

The aggravating factor at
issue here, commonly referred to as the "continuing threat" factor,
is defined by statute as the "existence of a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Okla. Stat. Ann. tit.
21, § 701.12(7).

In rejecting such challenges,
the Oklahoma Court of Criminal Appeals has specifically held that "the
phrase 'the existence of a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society' is clear and does not require further definition."
Id. at 716.

In United States v.
McCullah, 76 F.3d 1087 (10th Cir. 1996), cert. denied,
117 S.Ct. 1699 (1997), we emphasized that "vagueness review should
be 'quite deferential' because 'mathematical precision' is not
possible in the definition of aggravating factors." Id. at
1110 (quoting Tuilaepa v. California, 512 U.S. 967, 973
(1994)).

Although an aggravating
factor "may be unconstitutionally vague if it 'leave[s] the
sentencer without sufficient guidance for determining the presence
or absence of the factor,' id., a factor is not
unconstitutional if it has some "'common-sense core of meaning . . .
that criminal juries should be capable of understanding.'"
Tuilaepa, 512 U.S. at 973 (quoting Jurek v. Texas, 428
U.S. 262, 279 (1976) (White, J., concurring)).

The United States Supreme
Court has rejected a vagueness challenge to a nearly identical
aggravating factor used by the State of Texas. Jurek, 428
U.S. at 274-75. Under the Texas sentencing scheme, a jury is
required to decide "whether there is a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Id. at 269.
Rejecting arguments that it is impossible to predict future behavior
and that the question is so vague as to be meaningless, the Supreme
Court stated:

It is, of course, not easy
to predict future behavior. The fact that such a determination is
difficult, however, does not mean that it cannot be made. Indeed,
prediction of future criminal conduct is an essential element in
many of the decisions rendered throughout our criminal justice
system.

The decision whether to
admit a defendant to bail, for instance, must often turn on a
judge's prediction of the defendant's future conduct. And any
sentencing authority must predict a convicted person's probable
future conduct when it engages in the process of determining what
punishment to impose. For those sentenced to prison, these same
predictions must be made by parole authorities. The task that a
Texas jury must perform in answering the statutory question in issue
is thus basically no different from the task performed countless
times each day throughout the American system of criminal justice.

Id. at 274-75.

The same reasoning is
applicable here. The fact that Oklahoma chooses to grant a
sentencing jury wide discretion to make a predictive judgment about
a defendant's probable future conduct does not render the sentencing
scheme in general, or the continuing threat factor in particular,
unconstitutional. Although this predictive judgment is not
susceptible of "mathematical precision," we do not believe it is so
vague as to create an unacceptable risk of randomness.

To the contrary, we believe
the question of whether a defendant is likely to commit future acts
of violence has a "common-sense core of meaning" that criminal
juries are fully capable of understanding. Accordingly, we conclude
the continuing threat factor used in the Oklahoma sentencing scheme
does not violate the Eighth Amendment.

In reaching our conclusion,
we acknowledge Nguyen's reliance on Williamson, in which a
federal district court in Oklahoma concluded the continuing threat
factor was unconstitutionally vague. 904 F. Supp. at 1569-71.
Although Williamson perhaps expresses legitimate concerns
about the Oklahoma Court of Criminal Appeals' apparent inconsistency
in defining what evidence will support the continuing threat factor,
it fails to discuss or even cite Jurek. For the reasons
outlined above, we conclude Jurek is persuasive, and indeed
controlling, on this issue.

In passing, we note Nguyen
has attempted to distinguish Jurek on the ground that the
Texas sentencing scheme utilizes the continuing threat factor only
during the selection decision, while the Oklahoma sentencing scheme
utilizes the factor during both the eligibility decision and the
selection decision. We are not persuaded. Because the continuing
threat factor is neither unconstitutionally vague nor applicable to
every defendant convicted of murder in the first degree, it is
properly used during both the eligibility decision and the selection
decision. SeeTuilaepa, 512 U.S. at 972.

Further, use of the factor
in the selection process in no way deprives a defendant of the
individualized determination to which he is entitled. Id. To
the contrary, Oklahoma's sentencing scheme requires the sentencing
jury to consider any relevant mitigating evidence that a defendant
chooses to present. See Okla. Stat. Ann. tit. 21, § 701.11.

Reweighing of
aggravating and mitigating circumstances

In his direct appeal, Nguyen
argued the "especially heinous, atrocious, or cruel" aggravating
factor was applied in an overbroad and unconstitutional manner.
After reviewing the record, the Oklahoma Court of Criminal Appeals
concluded the evidence did not support this particular aggravating
factor, as the factor had been interpreted and limited in
Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987)
(holding this factor applicable only to murders where torture or
serious physical abuse to any victims present). Nguyen, 769
P.2d at 174.

Specifically, the court
concluded no evidence was presented to the jury indicating whether
either of the child victims suffered prior to death. Notwithstanding
this conclusion, however, the court noted the jury had found two
other aggravating factors existed beyond a reasonable doubt--that
Nguyen knowingly created a great risk of death to more than one
person, and there existed a probability that he would constitute a
continuing threat to society. After reviewing the evidence
supporting these two aggravating factors, the court reweighed the
aggravating evidence and the mitigating evidence and concluded a
sentence of death remained appropriate:

After a review of the
record, we find that the sentences of death were not imposed under
the influence of passion, prejudice, or any other arbitrary factor.
Furthermore, after careful consideration of the evidence supporting
the aggravating circumstances, and the evidence of circumstances
which may in fairness and mercy be considered as extenuating or
reducing the degree of moral culpability, we find the sentences of
death both factually substantiated and appropriate.

Due to the overwhelming
evidence of guilt, the jury's finding that the murders were heinous,
atrocious, or cruel was at most harmless error. Nor can we say that
the sentence of death is arbitrary or capricious after the
inappropriately determined aggravating circumstance is removed from
consideration and the aggravating and mitigating circumstances are
reweighed.

Id. at 174-75 (internal
citations omitted).

In his federal habeas
petition, Nguyen asserts (1) the jury instruction defining the "especially
heinous, atrocious, or cruel" aggravating factor was
unconstitutionally vague on its face and warrants overturning his
death sentence; (2) it was impossible for the Court of Criminal
Appeals to conduct a proper reweighing because it was impossible to
determine what mitigating factors were found by the jury; (3) the
Court of Criminal Appeals did not have authority to reweigh the
aggravating and mitigating factors; and (4) the Court of Criminal
Appeals' action violated Nguyen's due process rights and is the
equivalent of an ex post facto deprivation of his right to a life
sentence.

All of these arguments were
rejected by the district court. Now, on appeal, Nguyen appears to be
asserting only arguments (1) and (2).(7)
In addition, he contends the Court of Criminal Appeals' harmless
error analysis was inadequate because the court did not examine the
effect of the invalid aggravating factor on the jury's sentencing
verdict.

As the district court
correctly concluded, Nguyen's first argument is moot:

Not only was the jury
properly instructed that the aggravator only applied where the
murders had been preceded by torture or serious physical abuse, the
subsequent finding of insufficient evidence to support the
aggravator by the Oklahoma Court of Criminal Appeals in Petitioner's
case defeats any claim for habeas relief premised upon this issue.

Doc. 18, at 48. Accordingly,
we will focus on the remaining arguments asserted.

In Clemons v. Mississippi,
494 U.S. 738 (1990), the Supreme Court held nothing in the
Constitution requires that a jury impose the sentence of death or
make the findings prerequisite to imposition of such a sentence.

Accordingly, the Court
concluded a defendant's constitutional rights are not " infringed
where an appellate court invalidates one of two or more aggravating
circumstances found by the jury, but affirms the death sentence
after itself finding that the one or more valid remaining
aggravating factors outweigh the mitigating evidence." Id. at
745. In light of Clemons, it is apparent the Oklahoma Court
of Criminal Appeals' decision to reweigh the aggravating and
mitigating evidence did not violate Nguyen's constitutional rights.

Employing a de novo standard,
we review the Oklahoma Court of Criminal Appeals' decision,
reweighing the aggravating and mitigating factors to determine
whether that court's independent reweighing of the aggravating and
mitigating factors afforded Nguyen "an individualized and reliable
sentencing determination based on the defendant's circumstances, his
background, and the crime." Id. at 749. The state court's
factual findings as to the mitigating and aggravating factors are
reviewed under the "rational factfinder" standard. Lewis v.
Jeffers, 497 U.S. 764, 783 (1990); Stafford v. Saffle, 34
F.3d 1557, 1569 (10th Cir. 1994).

As applied here, we conclude
the decision was entirely appropriate. By repeatedly stabbing three
of the four people in the Whites' home, it is obvious Nguyen
knowingly created a great risk of death to more than one person. We
note Nguyen has never challenged this aggravating factor. Likewise,
the testimony of Mychau Truong supports the conclusion that Nguyen
constitutes a continuing threat to society. In contrast, there is
simply no mitigating evidence to outweigh the aggravating
circumstances.

Nguyen's argument that the
Court of Criminal Appeals could not have engaged in a proper
reweighing because the jury made no written findings with respect to
mitigating circumstances it found (if any) was expressly rejected by
the Court in Clemons. 494 U.S. at 750 ("An appellate court .
. . is able adequately to evaluate any evidence relating to
mitigating factors without the assistance of written jury findings.").

Nguyen's argument that the
Court of Criminal Appeals' harmless error analysis was improper is
also without merit. In Clemons, the Court held even if state
law prevented a state appellate court from reweighing aggravating
and mitigating circumstances, the state appellate court could
nevertheless apply harmless error analysis in reviewing a death
sentence imposed in reliance on an improper aggravating factor.
Id. at 752.

Specifically, the Court
indicated it is proper for a state appellate court to "examine the
balance struck by the [sentencing body] and decide that the
elimination of improperly considered aggravating circumstances could
not possibly affect the balance." Id. at 753.

Although Nguyen's argument
is somewhat unclear, he appears to be arguing the Court of Criminal
Appeals' harmless error review was invalid because it did not recite
the proper "beyond a reasonable doubt" standard and because it was
not detailed. Even though Nguyen's characterizations may be accurate,
we disagree with his assertion that the Court of Criminal Appeals'
decision is therefore invalid.

A reading of the decision
indicates the court "covered both bases" by first reweighing the
aggravating and mitigating circumstances and then engaging in
harmless error analysis. Under Clemons, it was unnecessary to
do both. Because the reweighing of factors was proper, any
deficiencies in the harmless error analysis are essentially
irrelevant. In any event, a de novo review demonstrates beyond a
reasonable doubt that the result of the sentencing phase would have
been the same had the improper aggravating factor been eliminated
entirely.

Instruction on
flight

During the guilt phase of
trial, the trial court instructed the jury that Nguyen was "presumed
innocent of the crime[s] charged, and the presumption continues
unless, after consideration of all the evidence, you are convinced
of his guilt beyond a reasonable doubt." State Court Record, at 80
(Instr. 2). The court also instructed the jury concerning Nguyen's
departure after the crime:

Evidence has been introduced
of the defendant's departure shortly after the alleged crime was
committed. You must first determine whether this action by the
defendant constituted flight.

The term flight, as it is
used in this instruction, means more than departure or concealment.
To be in flight, a defendant must have departed with a consciousness
of guilt in order to avoid arrest.

To find that the defendant
was in flight you must find beyond a reasonable doubt that: First,
the defendant departed; second, with a consciousness of guilt; third,
in order to avoid arrest for the crime with which he is charged.

If, after a consideration of
all the evidence on this issue, you find beyond a reasonable doubt
that the defendant was in flight, then this flight is a circumstance
which you may consider with all the other evidence in the case in
determining the question of the defendant's guilt or innocence.
However, if you have a reasonable doubt that the defendant was in
flight, then the fact of any departure is not a circumstance for you
to consider.

Id. at 91 (Instr.
13).

In his habeas petition,
Nguyen contends this flight instruction violated his due process
right to a presumption of innocence because the instruction asked
the jury to assume he committed the crimes with which he was charged.
Nguyen further contends the instruction relieved the State of its
obligation to prove him guilty.

In support of his
contentions, he cites Mitchell v. State, 876 P.2d 682, 685 (Okla.
Crim. App. 1993), in which the court held the same Oklahoma uniform
jury instruction as given here was erroneous unless given under
specific, limited circumstances (circumstances not present in
Nguyen's case).

Because Mitchell was
not issued until approximately four years after Nguyen's conviction
became final, Nguyen did not raise this issue on direct appeal.
Instead, he first raised the issue in his second application for
post-conviction relief in the Oklahoma state courts. Nguyen,
879 P.2d at 149. The Oklahoma Court of Criminal Appeals rejected the
issue on the ground that Mitchell represented a new,
nonretroactive state law rule for the conduct of criminal
prosecutions that was unavailable to Nguyen. Id. at 149 (citing
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).

The district court agreed
Mitchell "involve[d] a nonretroactive change in state law, and
that the claim attacking the flight instruction was not viable
during trial or on direct appeal." Doc. 18, at 57.

Accordingly, the court
concluded the claim was barred because neither trial counsel nor
appellate counsel could be characterized as ineffective for failing
to raise the issue. Nguyen contends the district court erred in
finding a federal bar to habeas relief because, according to Nguyen,
the Oklahoma Court of Criminal Appeals resolved the issue on the
merits rather than on an independent and adequate state law ground.

We agree with the district
court that this claim is subject to procedural default and that
Nguyen's trial and appellate counsel were not ineffective for
failing to raise the issue. Even if we were to agree that the issue
was resolved on the merits by the Oklahoma Court of Criminal Appeals
and is thus properly reviewable in the context of this habeas
petition, we would not accept Nguyen's argument that the challenged
instruction warrants setting aside his convictions.

A § 2254 petitioner has a
heavy burden in attempting to set aside a state conviction based on
an erroneous jury instruction. Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995). As a general rule, errors in jury instructions
in a state criminal trial are not reviewable in federal habeas
corpus proceedings, "unless they are so fundamentally unfair as to
deprive petitioner of a fair trial and to due process of law."
Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981) (citing
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). In Henderson,
the Supreme Court stressed "[t]he question in such a collateral
proceeding is 'whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process.'"
431 U.S. at 154 (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)).

"The burden of demonstrating
that an erroneous instruction was so prejudicial that it will
support a collateral attack on the constitutional validity of a
state court's judgment is even greater than the showing required to
establish plain error on direct appeal." The question . . . is not
whether the [challenged] instruction is "undesirable, erroneous, or
even 'universally condemned,'" but whether the instruction so
infected the trial that the resulting conviction violates due
process.

Maes, 46 F.3d at 984
(quoting Henderson, 431 U.S. at 154) (citations omitted).
Nguyen clearly cannot meet this high standard. Without ultimately
passing on the desirability of the challenged flight instruction, we
conclude its use in this case did not so infect Nguyen's trial as to
deprive him of a fair trial or due process of law. The challenged
instruction informed the jury it first had to determine whether
Nguyen's departure after the crime was committed constituted "flight."

Only if it determined the
departure constituted "flight" could it consider this as
circumstantial evidence of guilt. Although the instruction could
have been more artfully drafted, it did not allow the jury to
conclude Nguyen was guilty simply because of his departure.

To the contrary, it
specifically indicated that evidence of departure could be
considered only if the jury drew a specific set of inferences from
the departure. SeegenerallyUnited States v. Myers,
550 F.2d 1036, 1049 (5th Cir. 1977) (outlining inferences that must
be drawn in determining probative value of flight as circumstantial
evidence of guilt). Nor did the instruction alter the presumption of
innocence.

The trial court specifically
instructed the jury that Nguyen was presumed innocent and had to be
proven guilty beyond a reasonable doubt. Nothing in the flight
instruction controverted those general instructions. Accordingly, we
conclude there is no merit to the assertion that the instruction
violated Nguyen's constitutional rights.

Prosecutorial
misconduct

Nguyen contends
prosecutorial misconduct at trial violated his constitutional rights.
Specifically, he complains the prosecutor commented on his failure
to testify, referred to him as inhuman, and denigrated Vietnamese
people as a whole.(8) All
of Nguyen's arguments on appeal arise out of the prosecutor's
closing argument during the guilt phase of trial. In pertinent part,
the prosecutor argued that Nguyen's departure after the murders were
committed was indicative of guilt:

Tell you another thing it
tells you about it, for four years -- for four years he never sees
him again, his own child. Something happened that was so important
to the Defendant that he would flee that morning before the bodies
were even discovered by the Whites and never ever see his own child
again.

* * *

To abandon your family, that
simply is not human nature. He may be a Vietnamese, and in spite of
some of the evidence, he is still human, though. That is not human
nature. You don't leave. You don't disappear. You don't drop out of
sight before the crime is even discovered to never be found again
for four years. Why? There is only one reason why. There is only one
way he could have known. There is only one way that could have been
so important to him to abandon everyone for all of that time, and
that is that he knew what the Whites were going to find when they
got home and it was time to get out and disappear. And he did it. If
there is any other explanation for his conduct, you have not heard
it.

Trial Transcript, at 797-98.

The district court, after
noting the second and third arguments were deemed waived by the
Oklahoma Court of Criminal Appeals during the direct appeal, and
after pointing out that Nguyen did not make a "cause and prejudice"
argument concerning these arguments, concluded they were not
cognizable on federal habeas review.

As for the first argument (i.e.,
that the prosecutor commented on failure to testify), the court
concluded the prosecutor's remarks were "not so egregious as to
amount to a federal constitutional violation." Doc. 18, at 63.

In particular, the court
concluded "[t]he comments did not clearly and directly and
unequivocally call attention to Petitioner's failure to testify, nor
did they create the impression that the statements could only be
rebutted by Petitioner personally." Id.

We review habeas claims of
prosecutorial misconduct de novo, United States v. Ivy, 83
F.3d 1266, 1288 (10th Cir.), cert. denied, 117 S.Ct. 253
(1996), employing the standard set forth in Donnelly v.
DeChristoforo, 416 U.S. 637 (1974). SeeHoxsie v.
Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied 1997
WL 337238 (1997). In Donnelly, the Court held that
prosecutorial misconduct in a state court violates a defendant's
right to a fair trial only if the prosecutor's actions "so infected
the trial with unfairness as to make the resulting conviction a
denial of due process." 416 U.S. at 643.

We agree with the district
court's conclusions. Aside from the procedural bar preventing review
of the second and third arguments, none of the prosecutor's comments
were flagrant enough to have influenced the jury to convict on
grounds other than the evidence presented at trial. See
Ivy, 83 F.3d at 1288.

Evidentiary hearing
on habeas petition

Nguyen acknowledges he was
given a hearing on his first state post-conviction proceeding, but
contends he "was never able to develop and to present fully the
evidence supporting the factual allegations in the habeas petition."
Opening Brief, at 90.

In support of this
contention, Nguyen argues the state hearing "was presided over by a
biased judge who had predetermined the issues even before the
evidentiary hearing began," id. at 91, and he was not allowed
to fully question Silva concerning Silva's experiences in Vietnam
and how those might have affected his conduct at trial. Accordingly,
Nguyen claims the federal district court should have conducted an
evidentiary hearing of its own rather than relying on the state
district court's factual findings.

Federal courts entertaining
habeas petitions must give a presumption of correctness to state
courts' factual findings, "absent some reason to doubt the adequacy
or the accuracy of the fact-finding proceeding." Medina v. Barnes,
71 F.3d 363, 369 (10th Cir. 1995) (citing 28 U.S.C. § 2254(d)). This
presumption of correctness does not apply, and a federal court must
grant an evidentiary hearing, if the habeas petitioner did not
receive a full, fair, and adequate hearing in the state court
proceeding on the matter sought to be raised in the habeas petition.
Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1535 (10th
Cir. 1994).

Having reviewed the record
on appeal, which includes the transcript of the evidentiary hearing
in the first post-conviction proceeding, we conclude the district
court was not obligated to provide Nguyen with a new evidentiary
hearing.

Although Nguyen contends the
trial judge who conducted the post-conviction evidentiary hearing
was biased, a review of the trial transcript and the post-conviction
proceeding transcript reveals otherwise. Nguyen's only other
argument is that the trial judge did not allow him to fully explore
Silva's experiences in Vietnam.

Although this is true,
Nguyen fails to note that at the post-conviction proceeding his
counsel was allowed to make an offer of proof with respect to each
question to which the state objected and which the trial court
sustained. In any event, this issue was clearly Nguyen's weakest
argument. Accordingly, there was no basis for the district court to
either reject the state court's findings of fact or to conduct its
own evidentiary hearing.

IV.

The judgment of the district
court is AFFIRMED.

*****

FOOTNOTES

1. We reach no conclusion concerning whether the
amendments to 154 would be applicable if the State of Oklahoma could
satisfy the requirements of § 2261(b) and (c).

2. To the extent Nguyen intended to assert a
procedural competency claim, seePate v. Robinson, 383
U.S. 375 (1966), we conclude he has failed to show cause for his
failure to raise the issue on direct appeal. SeeMedina,
59 F.3d at 1111.

3. Although the Oklahoma Court of Criminal Appeals
concluded some of Nguyen's ineffective assistance claims were waived
due to his failure to raise them on direct appeal, that does not
preclude federal habeas review of those claims. Brecheen v.
Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994).

4. The defense team did seek to introduce the
testimony of Betsy Payne, who allegedly would have testified about
Nguyen's chances for parole if given consecutive life sentences. The
trial court refused to allow Payne to testify.

5. In his petition filed with the district court,
Nguyen asserted additional errors on the part of trial counsel (e.g.,
failure to respond to juror's comment indicating he had made a
decision prior to the close of the guilt phase). To the extent he
intended to assert these additional errors on appeal, we reject them
for the reasons set forth in the court's opinion.

6. In his petition filed with the district court,
Nguyen asserted appellate counsel failed to raise other issues on
direct appeal (admission of blood spatter testimony, testimony about
marital troubles, problems with jury instructions, irrelevant
testimony during sentencing phase, failure to grant motion for
directed verdict on the continuing threat aggravator). To the extent
he intended to raise these issues on appeal, we affirm the court's
determination that none of these issues have merit and that
appellate counsel was not deficient for failing to raise them.

7. To the extent Nguyen intends to assert on appeal
the remaining arguments he presented to the district court on this
issue, we agree with the district court's analysis and ultimate
rejection of those arguments.

8. Nguyen also argued to the district court that the
prosecutor misbehaved by (1) defining reasonable doubt for the jury
during voir dire, (2) attempting to invoke sympathy for the victims
during closing argument by suggesting they were subjected to "unimaginable
terror," (3) asking that the parents of the child victims be allowed
to sit in the courtroom during the sentencing phase, (4) stating his
personal opinions during closing arguments in both phases of trial,
(5) invoking notions of societal alarm during voir dire, (6)
offering gruesome photographs of the crime scene and bodies into
evidence, (7) arguing facts not in evidence concerning Nguyen's
failure to see his son for four years after the murders, and (8)
misleading the jury via admission of the shirt left at Brown's house
on the night of the murders. None of these arguments are mentioned
on appeal. To the extent that Nguyen intends to assert them on
appeal, we adopt the findings and conclusions of the district court.